ALABAMA COURT OF CIVIL APPEALS1

GREGORY EVERETT

) CV 2012-066 Circuit Court of Jefferson ) County Plaintiff/appellant, ) ) v. ) ) THE CITY OF BIRMINGHAM, ) BIRMINGHAM POLICE ) DEPARTMENT AND JEFFERSON ) COUNTY PERSONNEL BOARD, ) Defendants/ appellees ) ) PLAINTIFFS NOTICE OF APPEAL OR IN THE ALTERNATIVE A WRIT OF CERTIORARI
Plaintiff Gregory Everett, fifteen-year employee of Birmingham Police Department (BPD), appeals the decision of the Circuit Court of Jefferson County. Plaintiff Everett submits that the Jefferson County Personnel Board lacked substantial and legal evidence to support the specific charges alleged in the Citys termination notice. Plaintiff Everett also asserts that the entire disciplinary process to which he was subjected violated fundamental principles of due process. Gregory Everett asserts that the record lacks substantial and legal evidence to support the following: 1. The harsh punishment of termination in consideration of the range of punishment given to officers under comparable circumstances; 2. The harsh punishment of termination in light of Everetts excellent disciplinary history as a patrol officer; and 3. The harsh punishment of termination in consideration of the Citys concession that the investigators decision to sustain the charges probably would have been different had

she interviewed Michael Weiss, a witness at the scene of the incident giving rise to this disciplinary action.

Fundamental fairness in disciplinary matters, especially in cases involving the termination of a non-probationary merit employee, requires that an employer, in this instance the Citys Birmingham Police Department, adhere to its policies concerning the use of progressive discipline and application of comparable discipline. Fundamental fairness also requires a fair and full investigation of the charges made the basis of any disciplinary action. The BPD failed to follow any of these policies fundamental to a fair disciplinary system. As revealed in the findings of the three-judge panel, NaShonda Goree, an investigator in the BPD Internal Affairs Department, intentionally failed to interview a key independent citizen witness, Michael Weiss, who was on the scene and who observed the events giving rise to the charges against Officer Everett. Goree also conceded that she intentionally did not contact Weiss, though she had his identity and contact information at the time she was investigating the citizen complaint against Officer Everett. She further admitted that she intentionally did not contact Weiss because she had already pretty much proven her case against Officer Everett. In sworn testimony before the Jefferson County Personnel Board (Personnel Board), Weiss exonerated Officer Everett on all allegations giving rise to his termination. Sgt. Goree conceded at the hearing that Weiss testimony, as summarized for her at the hearing, probably would have affected her earlier decision to sustain the allegations brought by Mr. Lowe against Officer Everett. (TR at 297-298.) Goree was asked during cross examination: I represent to you that you can

assume this to be true. Weiss said I was there. No pushing. No cursing. He was courteous when he got the keys. Does that affect your deliberations on what you told the chief as to whether such should be sustained? Would that have affected it? Investigator Gorees response under oath at the hearing: If Mr. it probably would have affected it. (Tr. At 298).

The charges that Goree pretty much thought she had proven against Officer Everett stemmed from a citizen complaint filed by Cedric Lowe, owner of a car repair shop, who refused to return a 2010 Volvo to its rightful owner, Budget Rent-a-Car. Lowe complained that Officer Everett pushed him three times and took the car keys from his waistband. Following her investigation, Goree sustained the following charges against Officer Everett: maltreatment of a prisoner, conduct and deportment, interference with a private business, false report, and conversion. Goree submitted her report to BPD Chief Roper, knowing that he relied on her conclusions and recommendation. On the basis of Gorees report, Officer Everett was terminated. At the Personnel Board hearing, BPD Chief Roper heard the exculpatory testimony of Michael Weiss. Chief Roper also heard the concessions made by the Investigator Goree revealing that her investigation was not full and complete. Even then, Chief Roper did not modify his stance as to the appropriateness of termination in light of these revelations. The hearing officer failed to address in her findings of fact the exculpatory testimony presented by Weiss or the concessions made by Investigator Goree. The Personnel Board overlooked these critical issues and summarily affirmed the hearing officer. The Personnel Board also failed to recognize that the BPD treated Plaintiff Everett more harshly than officers who were disciplined under similar circumstances. As the record reflects, the BPD did not challenge Officer Everetts defense that termination was too harsh a penalty. Moreover, the BPD did not refute a comparable disciplinary introduced by Officer Everett wherein a BPD officer was given a fifteen-day suspension for hitting a handcuffed prisoner. The hearing officer incorrectly limited comparable disciplinaries to those occurring during Chief Ropers administration when it is undisputed that the agreed upon Personnel Board rule compares comparable disciplinary actions during a three-year period. The hearing officers conclusion that Officer Everett did not present any comparable cases is without any factual basis. Plaintiff further submits his termination violated the due process under the Fourteenth Amendment of the U.S. Constitution which requires that the charges be reasonably specific and that the evidence be related to the actual charges. At the hearing, BPD Chief adjusted the basis for his decision to the totality of the circumstances as such relates to what he deemed a false police report. It cannot be overlooked that Chief Ropers decision was based on Gorees defective investigation, an investigation which failed to consider the eye-witness testimony of Michael Weiss who clearly and assertively testified that Lowe had not been pushed or subjected to

maltreatment. To the extent the arrest report had some bearing, the testimony of the citizen witness Michael Weiss negated any credible claim that the arrest report was not in great measure an accurate and a sound basis for charging Cedric Lowe with disorderly conduct. Moreover, Chief Roper cited no evidence that any officer was ever terminated on any of the charges listed in the termination notice. In fact, the City did not challenge the evidence that in a comparable disciplinary the officer was given a fifteen-day suspension. Even with the revelations of the defective IAD investigation, Chief Roper maintained that termination was justified though he provided no comparable cases wherein termination had been given to any other officer under similar charges, even as amended at the hearing. Everett respectfully disagrees with two members of the three-judge panel. The investigation on which the charges were based was biased and defective. This finding proves that substantial evidence does not support the termination action, particularly the harshness of the punishment in light of the comparable presented by Officer Everett. Not mentioned in the Courts thirtypage Order is the obvious fact that the Volvo keys were clearly identified by a key-tag that revealed that the car was a rental from Budget Rent-A-Car. Lowe knew when he argued with Alexander (the lessee) and with Weiss (the manager of Budget Rental) that he had no right to physical possession of the 2010 Volvo or to make any repairs. When embroiled in this dispute, Lowe did not contact the Jefferson County Circuit Court, he dialed 911 and asked the police to assist him in resolving the matter. Indeed the dispute as to the car was resolved. Lowes subsequent disorderly behavior was the basis for his arrest. The City approved the actions taken by the officers until such time as the IAD investigator felt that she had pretty much made her case against Officer Everett. The IAD investigator admitted at the hearing that the testimony of Michael Weiss probably (not possibly as stated in the Court Order) would have altered her decision to charge Officer Everett. The City has conceded its case against Officer Everett and such is sufficient to REVERSE the Personnel Board. The irony is chilling. Officer Everett was terminated for following orders directing him to back up a fellow officer who was responding to a citizen dispute which the City now deems a civil matter; for responding to a dispatch call he could not refuse; and for taking actions that were approved by BPD supervisors in all official signed reports. Officer Everett was the only officer terminated. As for Cedric Lowe, he testified that he was ushered into the City Law

Department in advance of the Personnel Board hearing and given assistance by Mr. Jarvis and a City Attorney in filing damages against the City. As further grounds the Plaintiff adopts the findings and legal issues set forth in the Dissent filed of record by Judge Tom King, Jr. in the three-judge panel decision entered on June 28, 2012. Judge Kings dissent is presented in its entirety below. JUDGE TOM KING, JR. (Dissenting Opinion) I strongly DISSENT from the Opinion of my colleagues. The undersigned is firmly convinced that the Jefferson County Personnel Board (JCPB) did not rely on substantial and legal evidence in making its decision to terminate this fifteen (15) year veteran patrolman. The Presiding Judge in this matter provided a thorough review of the record in his Order. I would, however, challenge any reader of the Order to attest that the decision of the JCPB, with two (2) members voting and one (1) abstaining, based its decision on substantial and legal evidence. I. The officers should not have been dispatched to that location and situation. First and foremost, I agree with the Concurring Opinion that the Chief of Police would be well-advised to review the departments protocols for determining under what circumstances police intervention is warranted. In substantiation of the Concurring Opinion, Officer Goree testified that though the officers should assist on a 911 call, the officers should not intervene in a civil dispute because that is a violation of rules and regulations. This official inquiry should have commenced with such an analysis. II. Patrolman Everett Was Backup The situation had already intensified when Officer Hall called for back up, resulting in Patrolman Everett being dispatched to the scene. Apparently, this fact was not considered as a mitigating circumstance in deciding Patrolman Everetts punishment. III. Cedric Lowes Behavior Furthermore, a complete reading and analysis of the file leads this jurist to the conclusion that but for Mr. Lowes refusal to abide by the lawful commands of Officer Hall and then Patrolman Everett (several times), this incident would not have taken place. Mr. Lowes unlawful behavior provoked the entire situation. The charge of disorderly conduct was a mere aspect of the events. It would appear that the police would have been justified in more serious charges as well, to include resisting arrest. IV. The investigating officer failed in her responsibility to thoroughly and Conscientiously perform her assignment.

To quote Officer Goree, I didnt interview Mr. Weiss because I had pretty much proven my case with the witness. And the video provided to me. So the allegations were proven with the video. Officer Goree also testified that had she known the information contained in the sworn deposition of Mr. Weiss with regard to the manner in which Patrolman Everett obtained the keys from Mr. Lowe, that information possibly would have altered the conclusions and recommendations that she had made to Chief Roper. In fact, Mr. Weisss testimony refutes the allegations made by Mr. Lowe against Patrolman Everett. As for the video, the record reveals that the video is between 90 to 180 seconds of a one and a half to two hour situation. What did Officer Goree mean by pretty much proven my case? In making a recommendation for termination, should there be more regard than just pretty much proving my case? Does an incomplete investigation amount to substantial evidence? Should an incomplete and negligent investigation be allowed to amount to substantial and legal evidence? This Judge submits that more is required of an investigation contemplating termination of a long-term employee. V. Failure of Hearing Officer and JCPB to Consider Comparables This abject failure to follow its own rule regarding the three (3) year window of disciplinary actions is inexcusable. In fact, the policy was ignored despite evidence that another officer was given only a fifteen (15) day suspension for hitting a handcuffed suspect. VI. No Progressive Discipline Patrolman Everett has served on the front line as a patrolman for his entire fifteen (15) year service with the BPD. While he was charged with several minor violations, this is to be expected when reviewing the file of any long-term patrolman assigned strictly to the street. However, no previous incident approaching a comparable charge in his otherwise distinguished career was so cited. In fact, the file of Patrolman Everett contains seven (7) separate incidences where he has been honored for his outstanding service in the BPD, to include three (3) by this Chief of Police. Furthermore, the most recent honor came just eleven months prior to the incident made the basis of this case. VII. Conclusion In sum, this investigation was flawed from the start and remained flawed each step in the process. The result of this flawed investigation is the unjust termination of Patrolman Everett. While the police should be held to the highest standards, our citizens and the legal system expect the termination of a police officer to be based upon substantial and legal evidence. In closing, I am in my twelfth (12th) year of judicial service, and in no instance have I seen the necessity to write a Concurring Opinion. Furthermore, this is the first occasion where I have authored a Dissenting Opinion. However, I would consider it a dereliction of my oath and duties as a Circuit Judge to refrain from voicing my assessment and genuine concerns regarding this serious matter. I hereby strongly DISSENT, and request that all who were involved in this regrettable termination to review the situation in light of the Opinion, Concurring Opinion and this Dissenting Opinion. All things considered, Patrolman Everetts termination was not based on substantial and legal evidence. Therefore, the decision to terminate was made in error and cannot, as a matter of law, be allowed to stand.

Judge Tom King, Jr. (Dissenting opinion) Plaintiff Everett submits that the decision of the Circuit Court of Jefferson County is due to reversed on the foregoing grounds. __________________________ Gayle H. Gear 2229 Morris Avenue Birmingham, Alabama 35203

CERTIFICATE OF SERVICE This appeal was mailed to Michael Fliegel, City Attorney and Laura Nettles, attorney for the JCPB, on this _____day of July, 2012. ___________________ Gayle H. Gear